Congressional Democrats say leading abortion rights groups have been directing them not to talk about repealing the Comstock Act and are actively discouraging them from introducing legislation to address it, NOTUS has learned.
Even as conservatives are publicly pushing Donald Trump to enforce the Comstock Act as a national abortion ban if he becomes president in 2025, Planned Parenthood, the Center for Reproductive Rights and the American Civil Liberties Union — who are all heavily involved in legal cases challenging abortion restrictions — have in at least two separate instances gotten lawmakers to change a bill’s text or kept them from introducing legislation altogether. The groups say they’re concerned that any action could impact the outcome of ongoing lawsuits, even as bills seeking to protect abortion access are highly unlikely to be enacted.
Publicly, Democrats are standing behind abortion rights groups’ arguments about being careful with the law. But privately, there’s frustration and “a lot of internal tension,” one House Democrat told NOTUS, between those who believe that lawmakers should stay away from trying to repeal Comstock while litigation continues and those who see it as a potent political message to communicate to voters as soon as possible ahead of November.
The Comstock Act is a series of 1873 laws that prohibit the shipment of “every article or thing designed, adapted or intended for producing abortion.” The laws were considered unenforceable when Roe v. Wade was in place, but last year, a federal judge in Texas ruled that Comstock prohibits the shipment of the two drugs used in most abortions in the U.S. — bringing attention to whether the law, which some legal experts say is dormant, is enforceable or not. That case is now in front of the Supreme Court, and Justices Samuel Alito and Clarence Thomas expressed interest in reviving Comstock during those oral arguments.
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After Rep. Becca Balint said she was working to introduce the Abortion Access and Information Act to repeal Comstock in April of last year, she sent a Dear Colleague letter, obtained by NOTUS, seeking bill co-sponsors. All three reproductive rights groups then reached out to the lawmaker and told her that drawing attention to Comstock would bring “into question whether this is, in fact, a dead law or not,” according to a source familiar with the conversations.
Ultimately, Balint’s bill was never introduced.
The Vermont representative has recently spoken about the need to repeal Comstock since that time and said that she’s in constant conversation with colleagues and abortion rights groups about how legislative action should be taken after the Supreme Court reaches a decision on the abortion pill case, likely in late June.
“We’re waiting to see what the scale of the decision is, what the scope is, but [Comstock] is absolutely an issue that we’re looking at. We’re just trying to figure out how to be the most effective,” Balint, who said she didn’t have problems with abortion rights groups, told NOTUS. She then added that her office “started a year ago, looking at this, and then in consultation with groups, attorneys, we decided that the time was not right.”
Rep. Pat Ryan’s Protecting Reproductive Freedom Act is another bill that was changed significantly after abortion rights groups’ lobbying. The New York congressman first introduced the bill in 2022 with a clause that did not specifically mention Comstock but said states could not implement or enforce “any prohibition or restriction on shipping or sending mifepristone or misoprostol across State lines.”
When the act was reintroduced in 2023, that specific provision was gone.
“There’s a lot of litigation playing out that’s specific to this that many of the reproductive rights groups are in the middle of. They’re actually wanting to, they’re not wanting to see [the Comstock Act] change in the middle of that litigation. So that was at the request of Planned Parenthood and other reproductive freedom groups that have been fighting this for a long time,” Ryan told NOTUS last year. “We obviously work really closely to them.”
A House Democratic aide told NOTUS that “there’s certainly a growing frustration on the Hill that outside groups are setting us up for a Dobbs redux.”
“It’s not just about the legal and legislative angles — there’s the political side of things. Choice groups are telling House Democrats not to message against a law that could literally lead to a national abortion ban on Trump’s first day in office. I feel like I’m taking crazy pills,” the aide said. “With the House, Senate and presidency on the line this fall, how are we not shouting this from the rooftops?”
A communications official in the abortion rights space responded to the frustrations, saying that lawmakers can “raise the alarm” and “educate their constituents” on Comstock, but it’s not worth focusing on legislation at the moment.
“Hanging your hat on a piece of legislation that’s not going to go anywhere because we have a Congress that can barely pass a budget, let alone take up response issues like the Comstock Law,” the official said. “We have to be practical about this, like the stakes are too high.”
In response to claims that abortion rights groups are trying to keep Democrats away from messaging on Comstock, Mike Zamore, the ACLU’s national director of policy and government affairs, said the group is “fully supportive of Congress’ efforts to get this antiquated law from the 1800s off the books and is actively working with congressional offices to respond to the threat posed by President Trump’s supporters who plan to use the Comstock Act as a backdoor national abortion ban if Trump is elected.”
Rachana Desai Martin, chief government and external relations officer for the Center for Reproductive Rights, said in a statement to NOTUS that the organization is “deeply concerned about attempts to weaponize this moot sexual purity law from the 1800s, and we’ve been clear about the need to find a solution with congressional leaders.”
Similarly, Karen Stone, vice president of public policy and government for Planned Parenthood Action Fund, said in a statement that “our champions in Congress are committed to protecting reproductive rights, and we will continue to review proposals on the matter, as we normally do.” The organization recently said in a blog post that Comstock should be “feared” by “anyone who believes in personal freedom.”
None of the groups, though, specified when they recommended legislative action to take place — if before or after the Supreme Court settled the abortion pill case.
In the past month, two Democrats — Rep. Cori Bush and Sen. Tina Smith — have said they are in communication with their colleagues to take legislative action on the federal law, specifically since conservative SCOTUS justices brought up the law.
Lawmakers were surprised that Bush and Smith were so public about seeking Comstock-related legislation ahead of a Supreme Court decision. Bush, in particular, has been in conversations with groups and other lawmakers since she called for Comstock’s repeal, but is still pushing for legislative action, possibly before the Supreme Court issues a ruling.
“I think it just ends up being different legislative approaches,” said Rep. Mary Gay Scanlon, who has been involved in discussions. “I don’t think there’s been a lot of frustration there. I think it’s just, you know, people taking different approaches and trying to sort through the best way to get through it. I would love to see something that we can get a maximum number of people behind.”
Rep. Bonnie Watson Coleman said there was interest in “pursuing the elimination” of Comstock but that they were waiting for the Supreme Court to make a move to “really know what we’re responding to.”
Scanlon said Democrats are currently evaluating the Comstock Cleanup Act of 1997, which was the last time party members looked to repeal the law’s abortion provisions.
If the justices don’t issue a decision, a concurrence or a dissent in the abortion pill case that brings up Comstock’s enforceability, “then, you know, maybe there isn’t quite the same urgency to address it right now,” Scanlon added.
Inaction on the law from Democrats, as Trump allies push for its enforcement, has left Democratic pundits who see campaigning on Comstock as a 2024 winning strategy exasperated. They argue that campaigning with an actual threat of an abortion ban is more successful than focusing on a hypothetical ban that could be enacted if Republicans take the White House.
“It’s the equivalent of fighting a campaign with one hand tied behind your back,” said a Democratic strategist who spoke on the condition of anonymity to avoid publicly criticizing abortion rights groups. “Democrats have a responsibility to make the stakes in the election very clear … The GOP is telling us what they’re going to do. We should believe them, and then we should warn the American people.”
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Oriana González is a reporter at NOTUS.